Citation Nr: 0427407
Decision Date: 10/04/04 Archive Date: 10/12/04
DOCKET NO. 03-33 586 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a rating in excess of 20 percent for a
postoperative left shoulder disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Crohe, Associate Counsel
INTRODUCTION
The appellant is a veteran who had active duty from October
1992 to March 1993. This case is before the Board of
Veterans' Appeals (Board) on appeal from a March 2003 rating
decision by the Atlanta Regional Office (RO) of the
Department of Veterans Affairs (VA).
FINDING OF FACT
The veteran's postoperative left (minor) shoulder disorder is
manifested by pain and incoordination on use; ankylosis,
limitation of motion of the arm to 25 degrees from the side,
or impairment of the humerus such as fibrous union or
nonunion are not shown.
CONCLUSION OF LAW
A rating in excess of 20 percent is not warranted for the
veteran's left shoulder disorder. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 4.7, 4.71a; Diagnostic Codes
(Codes) 5200, 5201, 5202, 5203 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Preliminary Matters
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. Regulations implementing the VCAA
are published at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). The VCAA and implementing regulations apply in the
instant case.
There has been substantial compliance with the pertinent
mandates of the VCAA and implementing regulations. The
veteran was provided a copy of the March 2003 decision
denying his claim. In that decision and in an October 2003
statement of the case (SOC), he was notified of the evidence
necessary to substantiate his claims, and of what was of
record. By correspondence in November 2002 (prior to the
rating decision on appeal), he was notified of the VCAA and
how it applied to his claim. The November 2002 letter and
the October 2003 SOC clearly cited the changes in the law
brought about by the VCAA and implementing regulations, and
explained that VA would make reasonable efforts to help the
veteran get pertinent evidence, and that he was responsible
for providing sufficient information to VA to identify the
custodian of any records. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Although the veteran was asked to respond
with any new evidence in support of his claim within 30 days,
he was further notified that evidence submitted within a year
would be considered. In fact, all evidence received in the
interim has been accepted for the record and considered.
Regarding notice content also, while the veteran was not
advised verbatim to submit everything he had pertinent to the
claim, he was advised that VA would obtain any Federal
government records, including any VA treatment records and
that if he identified private records and provided releases
VA would assist him in obtaining the records (and also that
he could submit such records himself). Given the nature of
this claim, this notice was essentially equivalent to telling
him to submit everything he had pertinent to the claim. He
is not prejudiced by any technical notice deficiency along
the way.
The record includes service medical records and VA treatment
and examination reports; all identified treatment records
have been obtained. There is no indication that any
pertinent evidence remains outstanding. All notice and duty
to assist requirements appear to be substantially met. The
veteran is not prejudiced by the Board's proceeding with
review of the matter on the merits at this point. See Conway
v. Principi, 6 Vet. App. 226 (1994).
II. Factual Background
Service Medical Records (SMRs) reveal that the veteran
dislocated his left shoulder while boxing in basic training
in November 1992.
The RO granted service-connection for dislocation of the left
shoulder in 1994, and assigned a 0 percent rating.
In April 1997 the veteran underwent a left shoulder anterior
capsular shift surgery. An August 1997 rating decision
increased the rating for the shoulder disability to 20% (and
also granted a temporary total convalescent rating).
A November 2000 VA outpatient record reflects that the
veteran complained of dislocation of the shoulder backward
with movements and of pain in the morning for about 30
minutes (getting better with moving around). Physical
examination of the left shoulder revealed a left shoulder
vertical anterior surgical scar that was well healed and not
tender. There was full range of motion. The examiner noted
that the veteran felt popping with abduction and adduction.
The examination was otherwise unremarkable.
On January 2003 examination on behalf of VA, the veteran
indicated that he had flare-ups that occurred as often as
twice a month and lasted a few seconds. During flare-ups his
ability to perform daily functions is impaired, particularly
when bending over or rolling his shoulder. Following a
dislocation, he hurts for a couple of days. The veteran
indicated he could perform functions of daily living such as
showering, vacuuming, dressing, gardening, taking out trash,
pushing a lawnmower. On a physical examination it was noted
that he was right-handed. Left shoulder flexion was to 180
degrees with pain at 170 degrees; abduction was to 180
degrees with no pain; external rotation was to 90 degrees
with pain at 90 degrees; and internal rotation is to 90
degrees. The examiner stated that the "DeLuca issues are
that of pain and incoordination." There was no evidence of
fatigue, weakness or lack of endurance on examination. A
left shoulder x-ray showed previous surgery. The diagnosis
was dislocation of the left shoulder, status post left
shoulder surgery for dislocation, anterior capsular shift
with pain and incoordination on usage. The examiner
commented that the veteran would have difficulty executing
tasks that require use of his left upper extremity,
particularly during flare-ups.
In his July 2003 Notice of Disagreement and November 2003 VA
Form 9, the veteran asserted that his left shoulder hurt
daily and his tolerance for pain was increasingly less. He
stated that he could no longer do landscape/irrigation work,
and would require further surgery. He is presently working
in sales (he reported to VA examiner in February 2003 that he
has been working in sales since 2000).
III. Criteria and Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. In
assessing the degree of disability attributable to a service-
connected disorder, the disorder is generally viewed in
relation to its whole history. 38 C.F.R. §§ 4.1, 4.2. The
basis for disability ratings is the extent to which the
disability adversely affects the ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon average
impairment of earning capacity in civil occupations. 38
C.F.R. §§ 4.1, 4.10.
The veteran's service-connected minor left shoulder disorder
is currently rated under 38 C.F.R. § 4.71a, Code 5203 for
impairment of clavicle or scapula (20 percent is the maximum
rating, when there is dislocation).
Shoulder disability may be rated based on (for the minor
arm): Ankylosis (here not shown). Limitation of motion (20
percent at the shoulder level or at midway between side and
shoulder level; 30 percent where limited to 25 degrees from
the side). Impairment of the humerus (20 percent for
malunion with deformity - here not shown, or for frequent or
infrequent dislocation of the scpulohumeral joint; and higher
ratings for fibrous union, nonunion, or loss of head-none of
which is shown). or Impairment of the clavicle or scapula (20
percent maximum rating for dislocation or nonunion with loose
movement). 38 C.F.R. § 4.71, Codes 5200, 5201, 5202, 5203.
Normal shoulder motion is described as 0 to 180 degrees of
forward elevation (flexion), 0 to 180 degrees of abduction,
and 0 to 90 degrees of internal and external rotation. See
38 C.F.R. § 4.71, Plate I
The Court has held that diagnostic codes predicated on
limitation of motion do not prohibit consideration of a
higher rating based on functional loss due to pain on use or
due to flare-ups under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v.
Brown, 8 Vet. App. 202, 206 (1995).
As the veteran's left shoulder is already rated 20 percent,
the focus here is on whether the impairment shown meets any
of the schedular criteria for a rating exceeding 20 percent.
As noted, the shoulder is not shown to be ankylosed, and the
criteria for rating ankylosis (Code 5200) do not apply.
There is no fibrous union, nonunion, or loss of head, and the
criteria for ratings in excess of 20 percent under Code 5202
also do not apply. As Code 5203 provides a maximum rating of
20 percent, an increased rating based on impairment of the
clavicle or scapula is not warranted. And the arm is not
shown to be limited in motion to 25 degrees from the side
(abduction). See report of January 2003 examination.
Consequently, a rating in excess of 20 percent under Code
5201 is also not warranted.
Since separate ratings for dislocation and limitation of
motion would not compensate the same impairment twice (and
would not constitute pyramiding which is prohibited under
38 C.F.R. § 4.14 - See VAOPGCPREC 9-2004), the Board has
considered separate compensable ratings for these two types
of impairment. The veteran suffers recurrent dislocations,
consequently, the criteria for the maximum rating for such
impairment alone are met. Codes 5202, 5203. However,
shoulder motion is not shown to be limited at the shoulder
level, even with consideration of the factor of pain. See
ranges of abduction and flexion on January 2003 examination.
Consequently, the requirements for the minimum limitation of
motion rating under Code 2001 are not met, and a
noncompensable rating must be assigned for any such
impairment. 38 C.F.R. § 4.31. Hence, separate compensable
ratings for left shoulder disability are not warranted.
Finally, the Board also cannot conclude that the disability
picture due to the veteran's left shoulder disorder is so
unusual or exceptional as to render impractical application
of the regular schedular criteria. 38 C.F.R. § 3.321(b).
The record does not reflect frequent hospitalizations for the
left shoulder disability, and while the shoulder disability
may have impacted on the veteran's work in landscape and
irrigation, such employment impairment, alone, is not beyond
the average impairment of earning capacity contemplated by
the regular schedular criteria. There is no indication that
the degree of impairment shown with respect to manual labor
is transferable to other civil occupations. In fact, the
veteran has indicated that he is currently employed in sales.
Consequently, referral for extraschedular consideration is
not warranted.
The preponderance of the evidence is against the veteran's
claim. Hence, it must be denied.
ORDER
A rating in excess of 20 percent for the veteran's left
shoulder disability is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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